ELIOT SPITZERAttorney General of the State of New YorkBy: Joel L. Marmelstein, Esquire Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

October 31, 2002

City:

Syracuse

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

Claimant brings this motion for an order granting him poor person relief
pursuant to

Article 11 of the CPLR. Defendant submitted no opposition to this
motion.

Claimant seeks permission to proceed as a poor person. The benefits of being
granted permission to proceed as a poor person are set forth in CPLR 1102, which
include the assignment of counsel, relief from the payment of costs and fees,
and where permission to appeal by order has been granted, a stenographic
transcript and permission to submit typewritten appellate briefs and appendices.
The portion of claimant's motion seeking relief from the payment of costs and
fees has been addressed by separate order of the Honorable Susan Phillips Read,
Presiding Judge of the Court of Claims, dated and filed November 14, 2001.
This decision will address the balance of claimant's motion, assignment of
counsel.

The appointment of counsel in this type of case, which is for wrongful
confinement, is not required by the constitution or by statute, it is
discretionary (

See,Matter of Smiley, 36 NY2d 433; Stephens v State of New
York, 93 Misc 2d 273). After reviewing the claim and the circumstances of
this case, the Court will not exercise its discretion to appoint an attorney to
appear without compensation in this matter (See,Matter of Smiley,
supra; Courtwright v State of New York, Ct Cl filed March 20, 1997, J.
Corbett, Claim No. 95042, Motion No. M-54516).

Claimant has also failed to comply with the requirements of CPLR 1101(c) which
directs that a copy of the notice of motion must be served upon the County
Attorney in the county in which the action is triable. There is no indication
that the County Attorney was served. The motion can be denied on this ground
alone (See, Bowman v State of New York 229 AD2d
1024).

Based upon the foregoing, claimant's motion is DENIED in its entirety.